UNITED STATES of America, Plaintiff-Appellee,

                                                      v.

                                Scott T. JAMIESON, Defendant-Appellant.

                                                No. 98-5059.

                                      United States Court of Appeals,

                                              Eleventh Circuit.

                                               Jan. 31, 2000.

Appeal from the United States District Court for the Southern District of Florida. No. 97-06142-CR-KLR),
Kenneth L. Ryskamp, Judge.

Before COX and DUBINA, Circuit Judges, and KRAVITCH, Senior Circuit Judge.

        DUBINA, Circuit Judge:

        Appellant Scott Jamieson ("Jamieson") appeals his 71-month sentence for possession of a firearm

by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Jamieson argues that the district court based his

offense level upon an erroneous interpretation of 18 U.S.C. § 921(a)(30)(A)(i). We agree. Therefore, we

vacate Jamieson's sentence and remand this case for resentencing.

                                             I. BACKGROUND

A.      Procedural History

        A federal grand jury in the Southern District of Florida returned an indictment charging Jamieson

with felonious possession of a firearm. Jamieson entered into a written plea agreement with the government.

Under the terms of the plea agreement, Jamieson agreed to plead guilty to the indictment and the government

agreed to make a non-binding recommendation at sentencing that Jamieson be awarded a three-point offense

level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.

        The district court accepted Jamieson's guilty plea. To aid the district court in sentencing, the

Probation Officer prepared a pre-sentence investigation report ("PSI"). Jamieson filed written objections to

the PSI and specifically objected to the enhancement for possession of an allegedly stolen firearm. The

government filed no written objections.
        In a second addendum to the PSI, the probation officer agreed with Jamieson's objection and deleted

the two-level enhancement for possession of an allegedly stolen firearm. The probation officer further noted

that the government had "orally reported" objections to the PSI. The government argued that Jamieson's

firearm was a prohibited semiautomatic assault weapon described in 18 U.S.C. § 921(a)(30), and therefore

qualified him for the enhanced base offense level of 22 pursuant to U.S.S.G. § 2K2.1(a)(3). The probation

officer then submitted a revised PSI reflecting the deletion of the two-level enhancement for the allegedly

stolen firearm, but increasing the base offense level by two levels pursuant to § 2K2.1(a)(3). The PSI also

reflected the 3-level adjustment for acceptance of responsibility. These changes resulted in a total offense

level of 21, which was identical to the level set forth in the original PSI.

        At his sentencing hearing, Jamieson objected to the government's oral request for an enhancement

of the base offense level due to his alleged possession of a prohibited semiautomatic assault weapon. In an

attempt to meet its burden of proof, the government presented the testimony of firearms expert Agent Steve

Barborini of the Bureau of Alcohol, Tobacco and Firearms. According to Agent Barborini's testimony, under

current federal law, a semiautomatic rifle that can accept a magazine of over five rounds is illegal if it has two

or more of the following: a protruding pistol grip, a bayonet lug or flash hider, a threaded barrel, or a shroud

designed so that the rifle could be gripped without one's hand being burned. Agent Barborini testified that

the Norinco firearm at issue holds a 30-round magazine and is a semiautomatic gas operated rifle. He further

testified that Norinco changed the way it manufactured the firearm at issue after Congress passed a new law

banning certain types of assault weapons. Finally, Agent Barborini testified that, as a result of the redesign,

the firearm at issue did not possess two of the prohibited items, and thus, was a legal weapon.

        Even though Agent Barborini testified that the firearm at issue was not an illegal semiautomatic

assault weapon, the district court decided to apply the enhancement of U.S.S.G. § 2K2.1(a)(3) because it

interpreted 18 U.S.C. § 921(a)(30)(A)(i) to prohibit any semiautomatic assault weapon manufactured by




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Norinco. We conclude that the district court's interpretation of 18 U.S.C. § 921(a)(30)(A)(i) is incorrect.

Neither the language of § 921(a)(30)(A)(i) nor the legislative history supports such an interpretation.

                                       II. STANDARD OF REVIEW

         This court reviews the district court's findings of fact for clear error and its application of the

sentencing guidelines to those facts de novo. See United States v. Gallo, 

, 1280-81 (11th

Cir.1999); United States v. Tillmon, 

, 642 (11th Cir.1999).

                                             III. DISCUSSION

        Jamieson argues on appeal that the district court incorrectly interpreted 18 U.S.C. § 921(a)(30)(A)(i)

in calculating his base offense level under U.S.S.G. § 2K2.1(a)(3). Specifically, Jamieson contends that

although § 921 prohibits all models of Norinco's "Avtomat Kalashnikovs," it does not prohibit all Norinco

weapons, as the district court concluded. Moreover, Jamieson underscores Agent Barborini's testimony that

the firearm at issue was a legal weapon because it did not have two or more of the features prohibited in §

921(a)(30)(B). The government agrees with Jamieson's position and confesses error.1 Notwithstanding the

government's admission of error, we feel compelled to briefly address this first impression issue.

        On September 13, 1994, Congress passed the Violent Crime Control and Law Enforcement Act of

1994, Pub.L. No. 103-322, 108 Stat. 1796 (the "Violent Crime Control Act"), in order to amend and expand

various existing statutory and regulatory provisions found in 18 U.S.C. §§ 921-930 relating to the

manufacture, distribution, and possession of certain weapons. See National Rifle Ass'n of America v. Magaw,

, 277 (6th Cir.1997); Navegar, Inc. v. United States, 

, 997 (D.C.Cir.1997). Of

significance to this appeal, the 1994 Violent Crime Control Act banned the manufacture, transfer, or

possession of semiautomatic assault weapons. See 18 U.S.C. §§ 922(v)(1), 922(w)(1). Title 18 U.S.C. §

921(a)(30) defines a "semiautomatic assault weapon" as one of the nine specified firearms listed in §




   1
    We appreciate the government's candor in not only admitting that the district court committed error, but
also in acknowledging its contribution to the district court's confusion.

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921(a)(30)(A) or as a semiautomatic rifle that meets certain requirements as listed in § 921(a)(30)(B). Section

921(a)(30)(A) provides:

         The term "semiautomatic assault weapon" means—

        (A) any of the firearms, or copies or duplicates of the firearms in any caliber, known as—

                 (i) Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all models);

                 (ii) Action Arms Israeli Military Industries UZI and Galil;

                 (iii) Beretta Ar70 (SC-70);

                 (iv) Colt AR-15;

                 (v) Fabrique National FN/FAL, FN/LAR, and FNC;

                 (vi) SWD M-10, M-11, M-11/9, M-12;

                 (vii) Steyr AUG;

                 (viii) INTRATEC TEC-9, TEC-DC9 and TEC-22; and

                 (ix) revolving cylinder shotguns, such as (or similar to) the Street Sweeper and Striker 12.

18 U.S.C. § 921(a)(30)(A)(i)-(ix). Congress passed § 921(a)(30)(A)(i)-(ix) in order to ban the specific

weapons listed therein, including in sub-section (i) "(all models)" of Norinco "Avtomat Kalashnikovs." In

addition to banning certain specific firearms, Congress enacted 18 U.S.C. § 921(a)(30)(B) to ban

semiautomatic rifles regardless of make, model, or identity of manufacturer, if they had two or more of the

proscribed characteristics listed in § 921(a)(30)(B).

        After passage of the Violent Crime Control Act, the Sentencing Commission established a specific

base offense level of 22 for felons, like Jamieson, who had one prior felony conviction of a crime of violence

and who were convicted of being a felon-in-possession under 18 U.S.C. § 922(g)(1), if the offense involved

a firearm described in 18 U.S.C. § 921(a)(30). See U.S.S.G. § 2K2.1(a)(3). In applying 18 U.S.C. §

921(a)(30) to Jamieson, the district court, without argument to the contrary, mistakenly concluded that all

Norinco weapons came within the ambit of 18 U.S.C. § 921(a)(30)(A)(i). Accordingly, the district court



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decided that the enhanced sentence provided in U.S.S.G. § 2K2.1(a)(3) was appropriate for the Norinco

firearm at issue.

         We hold that the district court's conclusion contradicts the language of § 921(a)(30) and the

legislative history of the Violent Crime Control Act. Congress narrowly crafted the assault weapons ban to

limit the number of weapons being banned. See H.R.Rep. No. 103-489, at 6 (1994), reprinted in 1994

U.S.C.C.A.N. 1801, 1803. Moreover, the provisions of the Violent Crime Control Act set forth in 18 U.S.C.

§ 922 buttress the conclusion that not all Norinco weapons are illegal. The Violent Crime Control Act

"exempts certain weapons from its prohibitions, as listed in § 922, Appendix A, and described in § 922(v)(3)."

. Appendix A to § 922 lists a variety of weapons manufactured by Norinco which

are not prohibited. Although the Appendix does not include Jamieson's firearm, the fact that a firearm is not

listed in Appendix A does not mean that the firearm is prohibited. See 18 U.S.C. § 922(v)(1)(3).

         In summary, we conclude that 18 U.S.C. § 921(a)(30) does not encompass all Norinco weapons.

Section 921(a)(30)(A)(i) only bans all models of Norinco Avtomat Kalashnikovs. There was no testimony

at sentencing, nor was it the government's position, that Jamieson's weapon was an Avtomat Kalashnikov.

Moreover, Jamieson's sentence could not be enhanced pursuant to § 921(a)(30)(B). Section 921(a)(30)(B)

includes only semiautomatic weapons, regardless of make, which display two or more proscribed

characteristics. At sentencing, the government stated that Jamieson's weapon did not display two or more of

those prohibited characteristics. Therefore, the district court erred in concluding that all Norinco weapons

fit within the ambit of 18 U.S.C. § 921(a)(30)(A)(i), and in subsequently applying the offense level in

U.S.S.G. § 2K2.1(a)(3). Because Jamieson's sentence was based on an erroneous interpretation of the law,

we vacate his sentence and remand this case to the district court for resentencing consistent with this opinion.

        VACATED and REMANDED.




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